Category Archives: Internet Law

The intriguing legal ramifications of Pokémon GO

Recently, there has been a virtual tsunami of articles about the so-called hidden dangers of using the Pokémon GO app. The vast majority of them concern potential violations of the privacy rights of both consumers and landmark-owners. The media’s Chicken Little-like take on this is that augmented reality apps are opening the door to a dystopian future.

However, what has not been widely discussed is the impact of all this on the developers of augmented reality apps. That deserves some space as well.

I am the managing attorney of the Nissenbaum Law Group, LLC, a boutique commercial law firm located in NY, NJ, PA and TX with a focus in intellectual property. Our firm handles a fair amount of work involving apps. This includes everything from licensing agreements and movie and book deals to lawsuits over infringement of our clients’ intellectual property. We have reviewed the Pokémon GO controversy from the developers’ perspective and have come to the conclusion that it raises some very intriguing legal issues. Here are a few.

  1. What sort of access is really necessary in order to utilize the app? Many commentators have complained that signing into Pokemon GO provides “full access” to users’ Google accounts, i.e. gmail, maps, contacts, calendar, etc. See Slate.com’s excellent article on this concern. But does the app need to require a user to give total access to their Google account or is that simply an unnecessary overreach?

    If not, why stir up the hornet’s nest of privacy concerns when you can simply dial back the access without impairing the app’s functionality? The developer may not have complete control over how the app is downloaded, but that is precisely the point. Indeed, implementing such legal protections might give the developer a marketing edge to sell a more privacy-friendly product when others are not, e.g. end-to-end encryption. On the other hand, many developers have taken the position that no change is necessary since the heightened access level is fully disclosed and consented to by the app users in the terms and conditions and privacy policy. Either way, the developer should enter this legal thicket with eyes open. There is a downside of having the “benefit” of free access to user data.

  2. The web has been rife with articles concerning Poké Stops and Pokémon Gyms located at properties owned by people who have no idea that they have been selected. Notable examples of this have come from such wide-ranging landmarks as the Holocaust Museum andArlington National Cemetery. Setting aside the concern that it can be irritating to suddenly have 50 people show up at a national landmark because it has now become part of a video game, there are serious questions about whether this is also an invasion of privacy.

    State laws differ, but generally, invasion of privacy breaks down into three basic categories. As set forth in the Restatement of the Law, Second, Torts, § 652, they are:

    • Intrusion Upon Seclusion – One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
    • Appropriation of Name or Likeness – One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.
    • Publicity Given to Private Life – One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
      (a) would be highly offensive to a reasonable person, and
      (b) is not of legitimate concern to the public.

    It is obvious that any one or all of these could apply to the legal issues raised by augmented reality technology.

    So how can the developer be protected? A good start would be a waiver of liability. It is critical that the terms and conditions for the app waive liability not just for the company distributing it, but the developer, as well. Another important consideration is whether the developer can obtain a suitable insurance policy that would cover these sorts of claims. There is no way of being completely protected, but such measures at least can offer a partial shield to potential liability.

  3. Where does copyright law come into all this? Let’s consider the following hypothetical: the XYZ Candy Company is known throughout the country as being the best place to buy high-end candy and related items in bulk. It has a tremendous Internet presence and has franchised stores all along the eastern seaboard. Its unique building design—which is in the shape of one of its candies—has been copyrighted (Yes, under the right circumstances, a building design can be the subject of a copyright).

    But now, the XYZ Candy Company building also has become a Pokémon Gym. Players from miles around aggregate to that location because the name and logo are depicted in the app as a Pokémon Gym location. At what point does this mean the app is using the copyrighted design in violation of the copyright registration?

    The concern is not just that a developer would lose a lawsuit like that, but that they would be sued at all. Even a successful defense against such a challenge would create all sorts of negative consequences for the developer, e.g. litigation cost; backlash from the fan base; strain on the relationship with the app distributor; etc. If the potential for a copyright suit relating to building design is significant, the developer should consider negotiating license agreements / location releases with the copyright owner to specifically authorize the app’s use of it.

  4. Another legal risk for the developer that should be mitigated by appropriate waivers of liability and indemnification clauses is a slip and fall claim. Believe it or not, there are already proposed laws that would prevent people from walking in public locations while utilizing their cell phone. These laws would penalize pedestrians who use the sidewalk while distracted: something which would only be exacerbated by using a cell phone with an augmented reality location app. (And while we are on the subject, how about liability for using the app while driving?)

    This raises the obvious question of who would be indemnifying the developer in this scenario. Perhaps the user. They could, on the one hand, hold the developer harmless from the user’s own claim for damages caused by the user’s negligence and, on the other hand, indemnify the developer for any claims by others (third parties) for damage that also arose from the user’s conduct. While not foolproof, the best way to try to obtain this protection would be to include it within appropriate terms and conditions for use of the app.

  5. An integral way that augmented reality apps can be monetized is for the property owners to pay (perhaps on a per visitor basis) to be listed as a sponsored location. This can be complemented by such businesses using their status as an augmented reality location to provide discounted services to participants. All of this raises the question of how the developer can maximize the value of the brand and the monetization opportunities. Proper intellectual property registrations and a strong licensing and enforcement regime would be critical to doing so.

    Let’s take the example of a restaurant that advertises itself as a “Poké Stop” and utilizes a game image in connection with the stylized “Poké Stop” mark in its store window. That is arguably an instance of both copyright and trademark infringement. To best enforce those rights, however, it would be important for the game developer to have federally (if not internationally) registered those intellectual property rights.

    But why is it important to inhibit this type of use? Doesn’t it help promote the game? Perhaps, but, on the other hand, once a restaurant can associate itself with the game and the developer for free, the opportunity to sell that right to another restaurant diminishes greatly. Why would Restaurant A pay to be a sponsored location, if Restaurant B is doing it without paying? The value of the license—the amount that Restaurant A might pay the developer for that opportunity—is greatly enhanced by properly policing the intellectual property and not allowing third party infringers to use those rights without permission.

    Moreover, even if the developer is not seeking to make money from these opportunities, it still behooves it to have a license in place. Having a proper license can help the developer maintain brand integrity and quality control.

    As to brand control, for example, if the game is sold and targeted as being family-friendly, it will be important to ensure that the reality-based locations that are associating themselves with the game and its intellectual property, are appropriate venues, rather than liquor stores, places of adult entertainment and so forth.

    Quality control is also critical. A license can help maintain this and ensure that a location using the brand indicia of the game does not inadvertently tarnish it. In other words, if there is a restaurant that has health code violations, terrible reviews and other such challenges, the developer may very well not want to have its game associated with it. A proper license can help to provide an exit strategy and afford the developer enhanced rights.

Augmented reality apps are a quintessential example of disruptive technology. Their impact will extend beyond the digital world and affect other segments of society that may not currently even be aware of their existence. In the past, the law has done a very uneven job of keeping up with the pace of change created by such disruptive technologies… I could provide more examples, but I just saw a Mewtwo run into my law library. Gotta catch ‘em all…

May Copyright Infringement Suits Allow the Use of Blanket Subpoenas to Identify Anonymous Users of Potentially Infringing Internet Content? Originally Published Jan 28, 2014

Is it abusive for a company alleging copyright infringement to uncloak the anonymity of users of adult content in an effort to embarrass them into settling marginal claims? That issue was considered by the Court in Amselfilm Productions v. Swarm, 6A6DC, 12-cv-3865.
In that case, the plaintiff clearly was the object of infringing conduct by persons using BitTorrent – a peer to peer method of sharing content anonymously. The only question was whether the plaintiff could issue blanket subpoenas to obtain the IP addresses of the groups (“swarms”) of BitTorrent users and then coerce these individuals to obtain individual settlements with them. The implication was that if these individuals did not settle, their names would be made public, causing embarrassment over the fact that they potentially had downloaded adult content. This became a particularly important issue because so many of the claims of infringement were relatively unsubstantiated, i.e., how does one prove that any one individual within the larger “swarm” specifically downloaded specific content on a specific day?
The Court found that this was a misuse of legal process and procedure and prohibited employing such subpoenas without more of a showing of a particularized set of circumstances. In other words, there would have to be some level of demonstration suggesting that a particular individual had downloaded specific infringing content.
This case is one of many throughout the U.S. in which the practice of issuing blanket subpoenas successfully has been challenged.
 
Comments/Questions: gdn@gdnlaw.com
© 2014 Nissenbaum Law Group, LLC

Does the Federal Government Have Trademark Rights Enforceable by the Pentagon? Originally Published May 29, 2014

Does the federal government have trademark rights, and can those rights be enforced by the military? The answer is yes and yes.

In a recent New York Times article http://www.nytimes.com/2014/05/25/us/as-wars-end-military-gives-its-trademarks-new-vigilance.html?_r=0 it was noted that the Marines have filed trademarks 68 times in the past year “for products like Guadalcanal sweatshirts, meant to evoke the World War II battle against the Japanese, and tip of the spear newsletters, named for the motto of the Marine Corps, First Light Armored Reconnaissance Battalion .”

These sorts of registrations are being driven by the fact that returning veterans are seeking to open businesses using terms that are confusingly similar to trademarks belonging to the military. One of the interesting twists is that just because a veteran is violating a military trademark, that does not mean that the military will automatically refuse to allow them to continue doing so. Sometimes the military will obtain licensing fees in return for allowing the trademarks to be used. In fact, as the article noted “since 2009 the Marines have collected $5.4 million in such fees, and last year their trademark’s office turned over $700,000 to a morale, welfare and recreation fund.”

© 2014 Nissenbaum Law Group, LLC

Do Workplace Discrimination Laws Apply to Women Who Work on the Internet?

Do women who earn their livelihood on the Internet – for example, bloggers or digital journalists – have the right to sue under the anti-discrimination laws if they are targets of conduct that impairs their ability to earn a living in that manner? This issue was recently discussed in an article by Amanda Hess on the Pacific Standard website entitled, “Why Women Aren’t Welcome on the Internet.”

          In the article, Ms. Hess discusses a potential trend in the law, the basic outline of which was discussed in a 2009 paper in the Boston University Law Review authored by Danielle Keats Citron. To the extent that women must use the Internet to earn a livelihood, if they are harassed or threatened because of their gender, that could be deemed workplace discrimination. The victim might even be able to calculate the lost income from being unable to utilize the Internet for viable employment. This would be analogous to workplace harassment under the current regime of anti-discrimination laws.

          It remains to be seen if this idea will gain traction in our jurisprudence. However, with the growing presence of anti-bullying policies in our schools and codes of conduct in a growing list of our institutions, this may represent a means of curbing Internet harassment in the future.

Comments/Questions: gdn@gdnlaw.com
© 2014 Nissenbaum Law Group, LLC

Will Forcing Institutes of Higher Education to Guard Internet Networks Against Piracy Decrease the Rate of Illegal Downloading?

As the accessibility and knowledge of how to use technology has increased, so has the ability to take advantage of them. College students today have found loop holes in downloading files for free and this has caught the attention of entertainment industries. An excellent article Colleges and Universities Join Anti-Piracy Fight discusses how the Recording Industry of America (RIAA) and the Motion Picture Association of America (MPAA) have waged a battle on piracy for many years but finally urged for provisions to the Higher Education Opportunity Act of 2008 http://sciencetechlaw.healthreformwatch.com/2010/07/.
Aside from institution requirements and information on available grant programs, the Higher Education Opportunity Act of 2008 contained synopses of law provisions that would affect the higher education system. One of which focused on Copyright Infringement, which stated that institutions needed to “develop plans to detect and prevent unauthorized distribution of copyrighted material over campus networks”. It expanded to include all forms of intellectual property, including music and video files (http://www.cga.ct.gov/2008/rpt/2008-R-0470.htm).
Nonetheless, RIAA and MPAA continued to complain that piracy was an increasingly rapid problem. According to an analysis by the Institute for Policy Innovation, global music piracy was the direct source for $12.5 billion of economic losses and 71,060 U.S. job losses per year (http://www.riaa.com/faq.php). Furthermore, it was recorded that only 37% of acquired music by American consumers was paid for in 2009.  From these numbers, it was quite obvious that piracy had a negative impact on the music industry.
Since college students were/are some of the most avid music and media consumers in today’s society, clearly, some of the blame needed to be placed on the absence of stricktly enforced anti-piracy policies at universities and colleges.  As a result, entertainment industries wanted the provision to require universities and colleges to “implement at least one ‘technology based deterrent’ such as blocking file transfers, traffic shaping, or preventing access to peer-to-peer file transfer sites”. In the absence of that, it wanted to deny access to federal student financial aid.
The provision was made effective in 2010, and has received both positive and negative reviews. Some universities and colleges were able to successfully implement anti-piracy technology devises and have testified in having less copyright infringement notifications. On the other hand, the issue of piracy will always be a concern, as one cannot completely control the use of technology. To some, this new provision also seems to be just another tactic for entertainment industries to monopolize online music and media.

Does the Government Violate the 4th Amendment When it Obtains Evidence From a Suspect’s Facebook Page?

Does the 4th Amendment protect information disseminated online? Can Facebook posts be used against
defendants in a court of law?

The court in U.S. v. Joshua Meregildo WL 3264501 (S.D.N.Y. August 10, 2012), addressed whether the government violated the 4th Amendment by obtaining evidence from a suspect’s Facebook page. In that case, the government applied for a search warrant for the contents of Melvin Colon’s (“Defendant”) Facebook account. The Magistrate Judge found probable cause and granted the warrant. The basis of the finding of probable cause derived from the contents of Defendant’s Facebook page.

It was significant that one of Defendant’s Facebook friends granted the government access to view Defendant’s page. Through that access, the government learned that Defendant posted messages regarding prior acts of violence and threatened new violence to rival gang members. Additionally, the government obtained evidence that Defendant posted messages seeking to maintain the loyalties of other alleged members of Defendant’s gangs. Defendant argued that the government violated his 4th Amendment right to privacy by accessing his Facebook page.

In its decision, the Court began its analysis by noting that the 4th Amendment guarantees that all people shall be “secure in their persons, houses, papers, and effects, against unreasonable searched and seizures.” U.S. CONST. amend. IV.

A person has a constitutionally protected reasonable expectation of privacy when;

1) they have both a subjective expectation of privacy; and
2) that expectation is one that society recognizes as reasonable.

The Court reasoned that generally people have a reasonable expectation of privacy in the contents of their home computers. But this expectation is not absolute, and may be extinguished when a computer user transmits information over the internet or by e-mail. When a social media user disseminates his posting and information to the public, the user is no longer protected by the 4th Amendment. However, when users utilize secure privacy settings when posting on the internet, it reflects the user’s intent to preserve information as private and may be constitutionally protected.

In this case, since the defendant set his Facebook privacy settings to allow viewership of postings by friends, the government was allowed to access them through a cooperating witness who was one of those friends. Id. at 1-2.

The Court explained that Defendant was in error when he held the belief that his Facebook profile was private to law enforcement officials. This is because Defendant did not have a justifiable belief that his friends would keep his profile private. Once he shared his posts with his friends, his friends had the right to share it with law enforcement officials. Therefore, Defendant’s legitimate expectation of privacy ended when he disseminated posts to his friends.

Accordingly, the Court held that the government did not violate his rights under the 4th Amendment when it accessed Defendant’s Facebook profile through a cooperating witness.

Be very careful what you post on the internet; Information is unlikely considered private when it is on the internet. If you want to ensure your privacy, do not post your “private” information online for anyone to see.

When Are Online Forum Selection Clauses Enforceable in New York?

Should a defendant, who uses the Internet to market and sell nationally, be able to restrict jurisdiction with the use of a forum selection clause (“FSC”)? On the other  hand, should a plaintiff be able to drag an online company, that provides convenient and often times cheaper services, into court across the country?

In Guillermo Jerez v. JD Closeouts, LLC, JD CLOSEOUTS.COM, Inc., 2012-22070 (District Court of Nassau County, First District, March 20, 2012),  the Court addressed the issue of whether FSCs are enforceable. In that case, the plaintiff, Guillermo Jerez “plaintiff”, brought suit against two Florida corporations; JD Closeouts, LLC and JD Closeouts.com, Inc. (collectively, “Defendants”). The plaintiff purchased several tube-socks from the defendants’ online company via the defendants’ website. Plaintiff claimed that the tubes-socks were “defective” and that the defendants’ refused to refund his money. The plaintiff filed suit in New York, the location where he accessed the Internet to purchase the socks and where the socks were shipped.  However, the defendants claimed that because there was an FSC in the terms and conditions of their website, the plaintiff was limited to suing in Nassau County, Florida.  

 In the decision, the Court provided the background law regarding how courts generally treat FSCs. They are presumptively valid in regard to online contract formation. However, FSCs need to be fair; online companies must provide notice of such a clause so that a reasonable person would be aware of the terms prior to entering into the agreement. Online companies need not negotiate online contracts with their users in order to be valid; they only need to provide reasonable notice of the terms.  Therefore, as long as a website’s FSC “is not unreasonably masked from the view of the prospective purchaser,” courts will hold FSCs enforceable.

In analyzing this requirement, the Court cited cases with contrary holdings. In Specht v. Netscape Communications Corp., the Court held that the plaintiff, a user who downloaded from the defendant’s
website, was not put on reasonable notice of the contract terms. The Court explained that the terms were not reasonably communicated to the user because they were located on an “unexplored portion of the webpage” underneath the “download button.” Specht v. Netscape Communications Corp., 306 F.3d 17 (2d Cir. 2002). However, in Caspi v. Microsoft Network, LLC., the Court held, the terms of a contract enforceable where the user of online software was required to click “I agree” or “ I don’t agree” before the use of the software. This required affirmative step, on the part of the user, provided reasonable notice of the terms of the agreement.

The Court, in JD Closeouts held that the defendants’ FSC was not enforceable.  The court based its decision on the fact that the defendants’ FSC was “buried” and “submerged” on the defendants’ webpage. The only way the plaintiff could have become aware of the FSC would be if, by chance, he happened to find it by clicking the “About  Us” tab. Online users are not expected to conduct a wild goose chase; searching every corner of a website for contractual obligations that will be imposed upon them by online companies.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Does Selling a Grey Market Goods In New York Confer Individual Jurisdiction Over the Trademark Infringer?

In Chloe v. Queen Bee of Beverly Hills, L.L.C., No. 09-cv (2d Cir. Aug. 5, 2010), the court was presented with a novel issue: whether a New York court would have jurisdiction over a California resident who was alleged to have engaged in one act of trademark infringement by sale of product to a Bronx resident.

In that case, Simone Ubaldelli (“Simone”), a California resident, was the owner of a California company that sold knock-off Padington bags by Chloé . These bags were  misrepresented as being products manufactured by Chloé.  The issue was whether Simone could be sued as an individual in New York for trademark infringement by her company, Queen Bee.

The New York court determined that it had jurisdiction over Simone because, although the she had only engaged in one transaction with a New York resident, her company had made at least fifty (50) sales of merchandise in New York that infringed on Chloé’s trademark.  As a result, there were enough contacts such that suit could proceed against Simone individually.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Is A Twitter Account A Trade Secret?

Businesses have long been able to protect their list of customers as a trade secret, keeping the information out of the hands of competitors. But should the list of customers in a business’ Twitter account be granted the same confidential protection?

The United States District Court for the Northern District considered this question in a recent case. PhoneDog v. Kravitz, 2011 U.S. Dist. LEXIS 129229 (N.D. Cal. Nov. 8, 2011). The plaintiff, PhoneDog, used a variety of social media – including Twitter – to share reviews of mobile products and services with its readers. The defendant, Noah Kravitz (“Kravitz”), was a product reviewer and video blogger for PhoneDog. The company permitted Kravitz to use the Twitter account “@PhoneDog_Noah.” Kravitz used the account to disseminate information and promote PhoneDog services on behalf of the company. He generated approximately 17,000 Twitter followers during the course of his employment. Kravitz used a password to access the account.

PhoneDog claimed that all of its “@PhoneDog_Name” Twitter accounts, as well as the passwords to those accounts, were proprietary, confidential information. When Kravitz ended his employment with PhoneDog in October 2010, the company asked him to stop using the Twitter account. However, Kravitz instead changed the name (or “handle”) of the account to “@noahkravitz” and continued to use it. PhoneDog, alleging that Kravitz’s behavior caused it to suffer at least $340,000 in damages, brought suit against Kravitz for misappropriation of a trade secret and three other claims. Kravitz filed a motion to dismiss the claims.

A motion to dismiss allows a court to terminate a lawsuit that fails to state a claim upon which the plaintiff can receive relief from the court. When considering a motion to dismiss, a court must accept all of the plaintiff’s allegations as true and construe them in the light that is most favorable to the plaintiff. Bell Atl. Corp. v. Twombly¸550 U.S. 544, 570 (2007). Kravitz argued the claim should be dismissed because neither the identity of the account followers or the password to the account constituted trade secrets. Under the California Civil Code, a trade secret is defined as information that:

1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and

2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

California Civil Code, sec. 3426.1(d)

Kravitz claimed the list of followers was not secret because the information was publicly available on Twitter. He also claimed that the password was not a trade secret because the password itself did not derive any actual or potential independent economic value. Kravitz also argued that PhoneDog failed to allege any act by him that would be considered misappropriation. Under the California Civil Code, misappropriation is defined as the:

1) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means;

2) disclosure or use of a trade secret of another without express or implied consent by a person who:

a) used improper means to acquire the knowledge of the trade secret;
b) at the time of disclosure of use, knew or had reason to know that his or her knowledge of the trade secret was:

i.) derived from or through a person who had utilized improper means to acquire it;
ii.) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
iii.) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use

c) before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake

California Civil Code sec. 3426.1(b)

The Court found that Kravitz failed to show any basis for a dismissal of the misappropriation claims. The Court determined that PhoneDog described the subject matter of the trade secret with sufficient particularity and that Kravitz had refused to stop using the password and account despite the company’s requests. Additionally, the Court found that determining whether Kravitz’s behavior constituted misappropriation required consideration of evidence, and thus the claim could not be dismissed.

The future decisions in cases such as this will be very significant for businesses who use Twitter or similar social networking tools as a means of collecting a group of potential customers and establishing a professional relationship between them. It is yet another example of how traditional trade secret law will need to adapt to a world where the relationship between businesses and customers continues to operate more and more online and thus in a less confidential setting.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC

Can Google Maps Be Sued For Invasion of Privacy?

Many Americans are able to go online, enter their address into Google and zoom-in on the ensuing map so closely that they can see an image of their own home. However, few Americans have asked whether Google is invading anyone’s privacy by providing this capability.

In 2010, that question was proposed to the United States Court of Appeals for the Third Circuit. Boring v. Google Inc., 362 Fed. Appx. 273 (3d Cir. Pa. 2010). In 2008, a couple residing in Pennsylvania (“the Borings”) sued Google, claiming that the company’s “Street View” feature on Google Maps invaded their privacy. The Street View program allows users to see panoramic views of locations throughout the United States. To collect the images, Google attaches panoramic digital cameras to passenger cars and drives around cities photographing areas along streets and roads. Individuals are able to report and request the removal of inappropriate images they find on Street View.

The Borings, who live on a private road, claimed that their privacy interest was disregarded by Google when the company took photos of their property and made those photos available to the public. In addition to alleging that Google invaded their privacy, the Borings also asserted claims for trespass, injunctive relief, negligence and conversion. In February 2009, the United States District Court for the Western District of Pennsylvania granted Google’s motion to dismiss all of the Borings’ claims. The plaintiffs appealed.

Under Pennsylvania law, there are four tort actions for invasion of privacy:

1) unreasonable intrusion upon the seclusion of another;

2) appropriation of another’s name or likeness;

3) unreasonable publicity given to another’s private life; and

4) publicity that unreasonably places the other in a false light before the public.

Burger v. Blair Med. Assocs., Inc.¸ 600 Pa. 194, 964 A.2d 374, 367-77 (Pa. 2009).

The Court followed the District Court’s interpretation of the Borings’ complaint as asserting claims for intrusion upon seclusion and publicity to private life. Plaintiffs stating a claim for intrusion upon seclusion must allege conduct that:

1) demonstrates an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person, and

2) avers sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.

Pro Golf Mtg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (Pa. 2002).

The Court upheld the District Court’s decision and determined that the Borings’ claim for intrusion upon seclusion failed because the alleged conduct would not be highly offensive to a person of ordinary sensibilities. Boring at 280. “No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there.” Id. at 279. The Court also referred to an example included in the Restatement (Second) of Torts that “knocking on the door of a private residence [is] an example of conduct that would not be highly offensive to a person of ordinary sensibilities.” Id. The Court reasoned that Google’s actions of photographing an external view of the Borings’ home was arguably less intrusive than knocking on a door. “The existence of that image…does not in itself rise to a level of an intrusion that could reasonably be called highly offensive.” Id.

The Court also agreed with the District Court’s decision that the Borings’ claim of publicizing private life failed. To state such a claim, a plaintiff must allege that the matter being publicized is:

1) publicity

2) given to private facts

3) which would be highly offensive to a reasonable person, and

4) is not something that is of legitimate concern to the public.

Harris v. Easton Pub. Co., 335 Pa. Super. 141, 483 A.2d 1377, 1384 (Pa. Super. Ct. 1984).

The Court determined that the Borings failed to allege sufficient facts to establish that the publicity given to them by Google’s actions would be highly offensive to a reasonable person. Boring at 280.

The Court’s decision suggests that attempts to sue Google for invasion of privacy over its use of residential images in its Google Map program are not likely to succeed. Courts could suggest that Google’s opt-out option provides a better route for residents who think that their privacy rights are being violated.

Comments/Questions: gdn@gdnlaw.com

© 2012 Nissenbaum Law Group, LLC